Marriage developments in New Mexico, Ohio

NEWS

by Lisa Keen

There were two significant developments in the same-sex
marriage arena last week: in one, gay couples in yet another state have the
option of getting married; in another, a state's ban on gay marriage has been
stopped from destroying laws meant to help end domestic violence but it may
have made the possibility of civil unions more difficult.

The first involves New Mexico, but happened in
Massachusetts. In a surprise move, a state agency in Massachusetts quietly
announced it will issue marriage licenses to same-sex couples from New Mexico.

According to Gay & Lesbian Advocates & Defenders,
which sought the declaration, the Massachusetts Registry of Vital Records and
Statistics issued a "corrective notice" to Massachusetts' city and
town clerks, instructing them that New Mexico's laws do not prohibit marriage
between parties of the same gender.

The Massachusetts Supreme Judicial Court ruled last year
that gay couples from states which explicitly bar same-sex marriage cannot go
to Massachusetts for a marriage license. So far, the only couples which have
been able to take advantage of that ruling have been those in Rhode Island and
those in New York state who obtained marriage licenses in Massachusetts before the
New York supreme court ruled that state could bar recognition of same-sex
marriages. But in none of these cases has any ruling guaranteed that marriage
licenses obtained in Massachusetts would be recognized in other states.

That same distinction holds true for New Mexico gay couples,
and Alexis Blizman, head of the statewide gay political group Equality New
Mexico, said there has not been a lot of reaction by gay couples in New Mexico.
A group that has sought a constitutional ban in New Mexico has vowed to try for
it again next year, said Blizman, but the state legislative session is but one
month long next year and the House and Senate are controlled by Democrats.

"We would hope," said Blizman, "that the
Democrats wouldn't want this on the ballot in 2008."

Ohio

Meanwhile, the Ohio Supreme Court ruled July 25 that the
existence of a constitutional amendment barring same-sex marriage in that state
does not preclude the enforcement of a state law that prohibits domestic
violence between unmarried partners.

The case, State
v. Carswell,
involved an unmarried heterosexual couple. A state trial court dismissed
charges against a man accused of attacking a woman with whom he was living,
noting that the domestic violence law violated the constitutional amendment. The
Ohio Marriage Amendment stated, "Only a union between one
man and one woman may be a marriage valid in or recognized by this state.
..." But the state domestic violence law prohibits violence against a
"family or household member," and defines those terms to include a
spouse or person "living as a spouse."

The court said that recognition of a person living as a
spouse for the purposes of the domestic violence law does not provide such
persons with any of the rights or benefits of marriage.

One justice dissented, saying that providing recognition to
an unmarried partner under the domestic violence law in itself provides "a
legal status" to that unmarried partner.

"The crime of domestic violence," wrote Justice
Judith Ann Lanzinger, "occurs within an intimate relationship and is
distinct from the crime of assault. ... The General Assembly's classification
of 'person living as a spouse' is a recognitionby law of the relationship of unmarried and cohabiting individuals
based solely on the similarity of that relationship to marriage."

Lambda Legal Defense and Education Fund submitted a brief in
the case to argue that the Marriage Amendment should not be interpreted to
undermine the domestic violence law, as did Equality Ohio, a statewide LGBT
organization.

But Equality Ohio said the specifics of the decision
actually harmed gays in the state.

Lynne Bowman, executive director of the group, noted that
the majority defined the Marriage Amendment's language referring to the ban on
"legal status similar to marriage" and including civil unions.

By specifically
listing "'civil union' as an example," said Bowman, "the court
has made life even harder for same-sex couples trying to care for each other
and their children in Ohio."